Citation Nr: 0214430
Decision Date: 10/16/02 Archive Date: 11/06/02
Citation Nr: 0214430
Decision Date: 10/16/02 Archive Date: 10/29/02
DOCKET NO. 99-14 248 ) DATE OCT 16, 2002
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RECONSIDERATION )
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On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Whether the Department of Veterans Affairs committed
clear and unmistakable error in its December 1947 rating
decision assigning a noncompensable disability evaluation for
the veteran's right posterior thigh shell fragment wound
residuals.
2. Entitlement to an effective date prior to September 23,
1992 for the award of a 10 percent evaluation for the
veteran's right posterior thigh shell fragment wound
residuals including Muscle Group XIII injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from December 1942 to
September 1945. In July 1997, the Board of Veterans' Appeals
(Board) granted a 10 percent disability evaluation for the
veteran's right posterior thigh shell fragment wound
residuals with Muscle Group XIII injury. This matter came
before the Board on appeal from an August 1997 rating
decision of the St. Petersburg, Florida, Regional Office (RO)
which, in pertinent part, effectuated the Board's award as of
September 23, 1992 and determined that the Department of
Veterans Affairs' (VA) December 1947 rating decision
assigning a noncompensable evaluation for the veteran's right
posterior thigh shell fragment wound residuals was not
clearly and unmistakably erroneous. In May 1998, the veteran
submitted a notice of disagreement. In August 1998, the RO
informed the veteran that "your notice of disagreement to
the denial of ... an earlier effective date for a compensable
evaluation for shell fragment wound of the right thigh based
on clear and unmistakable error has been accepted." In June
1999, the RO issued a statement of the case to the veteran
and his accredited representative. In June 1999, the veteran
submitted an Appeal to the Board (VA Form 9). In May 2001,
the Board denied an effective date prior to September 23,
1992 for the award of a 10 percent evaluation for the
veteran's right posterior thigh shell fragment wound
residuals including Muscle Group XIII injury.
In June 2002, the veteran submitted a Motion for
Reconsideration of the Board's May 2001 decision. In January
2001, a Deputy Vice Chairman of the Board ordered
reconsideration of the May 2001 Board decision under the
authority granted to the Chairman of the Board in 38 U.S.C.A.
§ 7103(b) (West 1991 & Supp. 2002). This decision by the
reconsideration panel replaces the May 2001 Board decision on
the merits.
In May 1998, the veteran submitted a claim of entitlement to
an increased disability evaluation for his right posterior
thigh shell fragment wound residuals. It appears that the RO
has not had an opportunity to act upon the claim. Absent an
adjudication, a notice of disagreement, a statement of the
case, and a substantive appeal, the Board does not have
jurisdiction over the issue. Rowell v. Principi, 4 Vet. App.
9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993); Black v.
Brown, 10 Vet. App. 279, 284 (1997); Shockley v. West, 11
Vet. App. 208 (1998). Jurisdiction does matter and it is not
"harmless" when the VA fails to consider threshold
jurisdictional issues during the claim adjudication process.
Furthermore, this Member of the Board cannot have
jurisdiction of the issue. 38 C.F.R. § 19.13 (2002). The
United States Court of Appeals for Veterans Claims (Court)
has noted that:
Furthermore, 38 U.S.C.A. § 7105 (West
1991) establishes a series of very
specific, sequential, procedural steps
that must be carried out by a claimant
and the RO or other "agency of original
jurisdiction" (AOJ) (see Machado v.
Derwinski, 928 F.2d 389, 391 (Fed. Cir.
1991)) before a claimant may secure
"appellate review" by the BVA.
Subsection (a) of that section
establishes the basic framework for the
appellate process, as follows:
"Appellate review will be initiated by a
notice of disagreement [(NOD)] and
completed by a substantive appeal after a
statement of the case is furnished as
prescribed in this section." Bernard v.
Brown, 4 Vet. App. 384 (1994).
All steps required for jurisdiction have not been satisfied.
More recently, the Court again established that jurisdiction
counts. Specifically, the Court could not remand a matter
over which it has no jurisdiction. Hazan v. Gober, 10 Vet.
App. 511 (1997). Therefore, the issue is referred to the RO
for action as may be appropriate. Black v. Brown, 10 Vet.
App. 279 (1997). If the veteran wishes to appeal from the
decision, he has an obligation to file a timely notice of
disagreement and a timely substantive appeal following the
issuance of the statement of the case. 38 C.F.R. § 20.200
(2002).
FINDINGS OF FACT
1. The veteran's service medical records reflect that he
sustained a right posterior thigh shell fragment wound which
required medical treatment including a period of
hospitalization. No X-ray studies of the right thigh are
contained in the veteran's service medical records.
2. In December 1947, the VA granted service connection for
right posterior thigh shell fragment wound residuals;
assigned a noncompensable evaluation for that disability; and
effectuated the award as of September 14, 1945. The veteran
was informed in writing of the decision and his appellate
rights in December 1947.
3. The evidence before the VA in December 1947 did not show
the presence of either right posterior thigh retained
metallic foreign bodies or right Muscle Group XIII injury.
4. The veteran's reopened claim for an increased evaluation
for his right posterior thigh shell fragment wound residuals
was received by the RO on September 23, 1992.
CONCLUSIONS OF LAW
1. The VA did not commit clear and unmistakable error in its
December 1947 rating decision in failing to assign a 10
percent evaluation for the veteran's right posterior thigh
shell fragment wound residuals. 38 U.S.C.A. §§ 5107, 7105
(West 1991 & Supp. 2002); 38 C.F.R. § 3.105(a) (2002); 38
U.S.C.A. §§ 477, 736 (West 1946); 38 C.F.R. § 2.1141 (1947);
Schedule for Rating Disabilities, 17, Diagnostic Code 5313
(1945).
2. An effective date prior to September 23, 1992 for the
award of a 10 percent evaluation for the veteran's right
posterior thigh shell fragment wound residuals is not
warranted. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp.
2002), 38 C.F.R. § 3.400 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-4 75,
114 Stat. 2096 (2000). This law eliminates the concept of a
well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supersedes the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded). The new
law also includes an enhanced duty to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA was implemented with the
adoption of new regulations. See 66 Fed. Reg. 45,620 (as
amended, August 29, 2001) (codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a)). However, the
regulations add nothing of substance to the new legislation
and the Board's consideration of the regulations do not
prejudice the appellant. See Bernard v. Brown, 4 Vet. App.
384 (1993).
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7,
subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991). In this case, although the
RO did not have the benefit of the explicit provisions of the
VCAA or the implementing regulations at the time of the
decisions on appeal, the Board finds that VA's duties have
been fulfilled as they relate to the claim for an earlier
effective date.
As an initial matter, the U.S. Court of Appeals for Veterans
Claims (Court) has recently noted that the VCAA is not
applicable to all cases. Wensch v. Principi, No. 99-2210
(U.S. Vet. App. Dec. 20, 2001) (citing Smith v. Gober, 14
Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143
(2001)). In this case, the issues on appeal include a CUE
claim, which must be based on the record and law that existed
at the time of the prior adjudication in question. Damrel v.
Brown, 6 Vet. App. 242, 245 (1994). The appellant has not
argued that any additional development is required, and the
Board finds that there is no reasonable possibility that any
further assistance would aid the appellant in substantiating
this claim. See Wensch, supra. Therefore, a remand for
application of the VCAA is not required. See Livesay v.
Principi, 15 Vet. App. 165, 179 (2001) (en banc) (VCAA not
applicable to CUE claim).
In reviewing the issues of whether the VA committed clear and
unmistakable error in its December 1947 rating decision
assigning a noncompensable evaluation for the veteran's right
thigh shell fragment wound residuals and the veteran's
entitlement to an earlier effective date for the award of a
10 percent evaluation for his right thigh shell fragment
wound residuals, the Board observes that the VA has secured
or attempted to secure all relevant VA and private medical
records to the extent possible. There remains no issue as to
the substantial completeness of the veteran's claims. Any
duty imposed on the VA, including the duty to assist and to
provide notification, has been met. Quartuccio v. Principi,
16 Vet. App. 183 (2002).
I. Historical Review
The veteran's service medical records indicate that he was
struck in the right posterior thigh by shell fragments during
combat with the enemy on September 15, 1944. A September 15,
1944 naval treatment record states that the veteran was
wounded in action and transferred to the U.S.S. Aquarius for
treatment. A September 20, 1944 treatment record conveys
that the veteran was subsequently transferred to the U.S.S.
Pinkney, an evacuation transport ship. His wound was dressed
and treated with medication. A September 26, 1944 naval
treatment record notes that treating medical personnel
observed a necrotic shell fragment puncture wound over the
right extreme upper medial posterior thigh. Naval treatment
entries dated on September 27 and 28, 1944 reflect that the
veteran's wound was still draining. An October 5, 1944 naval
treatment record states that the veteran's wounds were almost
completely healed and he was returned to duty. The report of
the veteran's May 1945 physical examination for service
separation states that he exhibited no right lower extremity
abnormalities.
The report of the April 1947 VA special malaria examination
relates that the veteran reported having sustained a right
thigh shrapnel fragment wound in 1944 which necessitated a
period of three weeks' hospitalization or other medical
treatment. On physical examination, the veteran exhibited a
well-healed scar over the inner surface of the right thigh,
which was described as "NS/ND" (not symptomatic/not
disabling). In December 1947, the VA assigned a
noncompensable evaluation for scars of the right upper arm
and right thigh, as residuals of gunshot wounds, effective as
of September 14, 1945, the day following service separation.
In October 1981, the veteran submitted a claim for an
increased evaluation for his service-connected disabilities.
In November 1981, the RO recharacterized the veteran's
service-connected wound residuals as right leg shell fragment
wound scar residuals evaluated as noncompensable and right
arm gunshot wound scar residuals evaluated as noncompensable
and denied compensable evaluations for the disabilities. In
November 1981, the veteran was informed in writing of the
decision and his appellate rights. He did not submit a
notice of disagreement with the decision.
In April 1984, the veteran submitted a claim for an increased
evaluation for his right lower extremity shell fragment wound
residuals. No action was apparently taken on the claim.
In April 1989, the veteran again submitted a claim for an
increased evaluation for his right lower extremity shell
fragment wound residuals. In July 1989, the RO disallowed
the veteran's claim due to his failure to submit
documentation to support his claim. The veteran was informed
in writing of the decision and his appellate rights. He did
not submit a notice of disagreement with the decision.
In September 1992, the veteran submitted a claim for an
increased evaluation for his right thigh shell fragment wound
residuals. The claim was received by the RO on September 23,
1992. In February 1993, the RO denied the veteran's claim.
The veteran subsequently appealed to the Board. In June
1996, the Board remanded the veteran's claim to the RO for
additional development of the record which included affording
the veteran a VA examination for compensation purposes.
The veteran was subsequently afforded a VA examination for
compensation purposes in September 1996. The examination
report conveys that the veteran complained of right knee and
hip pain. He reported that he had sustained a right lower
extremity mortar shell fragment wound during combat in World
War II. On examination, he exhibited a well-healed and
non-tender right posterior thigh shrapnel wound scar and
"some" right thigh and right hip limitation of function.
Contemporaneous X-ray studies of the right lower extremity
revealed two metallic foreign bodies in the soft tissues over
the right buttock or inguinal area. In July 1997, the Board
granted a 10 percent evaluation for the veteran's right
posterior thigh shell fragment wound residuals with Muscle
Group XIII injury. In August 1997, the RO effectuated the
Board's award as of September 23, 1992.
II. Clear and Unmistakable Error
The veteran advances that the VA committed clear and
unmistakable error in its December 1947 rating decision by
failing to properly ascertain the muscle injury associated
with his right posterior thigh shell fragment wound and
subsequently evaluating his service-connected disability as
noncompensable. Generally, appellate review is initiated by
a notice of disagreement and completed by a substantive
appeal after a statement of the case is furnished. Absent
such action, a rating determination is considered to be final
and is not subject to review except upon a finding of clear
and unmistakable error. 38 U.S.C.A. § 7105 (West 1991 &
Supp. 2002). Title 38 of the Code of Federal Regulations
(2002) provides, in pertinent part, that:
Previous determinations which are final
and binding, including decisions of
service connection, degree of disability,
age, marriage, relationship, service,
dependency, line of duty, and other
issues, will be accepted as correct in
the absence of clear and unmistakable
error. Where evidence establishes such
error, the prior decision will be
reversed or amended. For the purpose of
authorizing benefits, the rating or other
adjudicative decision which constitutes a
reversal of a prior decision on the
grounds of clear and unmistakable error
has the same effect as if the corrected
decision had been made on the date of the
reversed decision. 38 C.F.R. § 3.105(a)
(2002).
The Court has set forth the following three-pronged test to
determine whether "clear and unmistakable error" is present
in a prior RO determination: (1) either the correct facts, as
they were known at the time, were not before the adjudicator
or the statutory or regulatory provisions extant at the time
were incorrectly applied; (2) the error must be "undebatable"
and of the sort "which, had it not been made, would have
manifestly changed the outcome at the time it was made;" and
(3) a determination that there was "clear and unmistakable
error" must be based on the record and the law as it existed
at the time of the challenged prior adjudication. Damrel v.
Brown, 6 Vet. App. 242, 245 (1994), citing Russell v.
Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). See also
Norris v. West, 12 Vet. App. 413, 419 (1999). A
determination of clear and unmistakable error is dependent
solely upon a review of that evidence which was before the
adjudicator at the time of the challenged decision.
At the time of the December 1947 rating decision, disability
evaluations were determined by comparing the veteran's
symptomatology with the criteria set forth in the 1945
Schedule For Rating Disabilities. 38 U.S.C.A. §§ 477, 736
(West 1946); 38 C.F.R. § 2.1141 (1947). The rating schedule
provided that a noncompensable evaluation was warranted for
slight injury to Muscle Group XIII (posterior thigh group).
A 10 percent evaluation required moderate injury. A 30
percent evaluation required moderate severe injury. Schedule
for Rating Disabilities, Diagnostic Code 5313 (1945).
The 1945 Schedule For Rating Disabilities offered guidance
for evaluating muscle injuries caused by various missiles and
other projectiles. It directed, in pertinent part, that:
(1) Slight (Insignificant) Disability of
Muscles.
Type of injury.-Simple wound of muscle
without debridement infection or effects
of laceration.
History and complaint.-Service department
record wound of slight severity or
relatively brief treatment and return to
duty. Healing with good functional
results. No consistent complaint of
cardinal symptoms of muscle injury or
painful residuals.
Objective findings.-Minimal scar; slight,
if any, evidence of fascial defect or
atrophy or impaired tonus. No
significant impairment of function and no
metallic fragments.
(2) Moderate Disability of Muscles
Type of injury.-Through and through or
deep penetrating wound of short track by
a single bullet or small shell or
shrapnel fragment are to be considered as
of at least moderate degree. Absence of
explosive effect of high velocity missile
and of residuals of debridement, or
prolonged infection.
History and complaint.-Service department
record or other sufficient evidence of
hospitalization in service for treatment
of wound. Record in the file of
consistent complaint on record from the
first examination forward of one or more
of the cardinal signs and symptoms of
muscle wounds particularly fatigue and
fatigue-pain after moderate use,
affecting the particular functions
controlled by the injured muscles.
Objective findings.-Entrance and (if
present) exit scars linear or small, and
so situated as to indicate relatively
short track of missile through muscle
tissue; signs of moderate loss of deep
fascia or muscle substance or impairment
of muscle tonus and of definite weakness
or fatigue in comparative tests. (In
such tests, the rule that with strong
efforts, antagonistic muscles relax is
applied to insure validity of tests.)
(3) Moderately Severe Disability of
Muscles.
Type of injury.-Through and through or
deep penetrating wound by high velocity
missile of small size or large missile of
low velocity, with debridement or with
prolonged infection or sloughing of soft
parts, intermuscular cicatrization.
History and complaint.-Service department
record or other sufficient evidence
showing hospitalization for prolonged
period in service for treatment of wound
of severe grade. Record in the file of
consistent complaint of cardinal symptoms
of muscle disability. Evidence of
unemployability because of inability to
keep up to production standards is to be
considered, if present.
Objective findings.-Entrance and (if
present) exit scars indicating track of
missile through important muscle groups.
Indications on palpation of moderate loss
of normal firm resistance of muscles
compared with sound side. Tests of
strength and endurance of muscle groups
involved (compared with sound side) give
positive evidence of marked or moderately
severe loss.
(4) Severe Disability of Muscles
Type of injury.-Through and through or
deep penetrating wound due to
high-velocity missile, or large or
multiple low velocity missiles, or
explosive effects of high velocity
missile, or shattering bone fracture,
with extensive debridement or prolonged
infection and sloughing of soft parts,
intermuscular binding and cicatrization.
History and complaint.-As under
moderately severe above, in aggravated
form.
Objective findings.-Extensive ragged,
depressed and adherent scars so situated
as to indicate wide damage to muscle
groups in missile track. X-ray may show
minute multiple scattered foreign bodies
indicating spread of intramuscular trauma
and explosive effect of missile.
Palpation shows moderate or extensive
loss of deep fascia or of muscle
substance. Soft or flabby muscles in
wound area. Muscles do not swell and
harden normally in contraction. Tests of
strength or endurance compared with the
sound side or of coordinated movements
show positive evidence of severe
impairment of function. In electrical
tests, reaction of degeneration is not
present but a diminished excitability to
Faradism compared with the sound side may
be present. Visible or measured atrophy
may or may not be present. Adaptive
contraction of opposing group of muscles,
if present, indicates severity. Adhesion
of scar to one of the long bones,
scapula, pelvic bones, sacrum or
vertebrae, with epithelial sealing over
the bone without true skin covering, in
an area where bone is normally protected
by muscle, indicates the severe type.
Atrophy of muscle groups not included in
the track of the missile, particularly of
the trapezius and serratus in wounds of
the shoulder girdle (traumatic muscular
dystrophy), and induration or atrophy of
an entire muscle following simple
piercing by a projectile (progressive
sclerosing myositis), may be included in
the severe group if there is sufficient
evidence of severe disability. Schedule
for Rating Disabilities, 17 (1945).
The evidence considered by the VA in formulating its December
1947 rating decision consisted of the veteran's service
medical records, the report of an April 1947 VA special
malaria examination, and written statements from the veteran.
The veteran's service medical records indicate that he was
struck by a shell fragment or fragments during combat and
sustained a puncture wound over the right extreme upper
medial posterior thigh. The report of the veteran's May 1945
physical examination for service separation conveys that he
exhibited no right lower extremity abnormalities. The report
of the April 1947 VA special malaria examination relates that
the veteran reported having sustained a right thigh shrapnel
fragment wound. On examination, the veteran exhibited a
well-healed scar over the inner surface of the right thigh
and the examiner found it to be nondisabling. Given these
facts, the Board finds that the evidence then before the VA
does not show the presence of right lower extremity
impairment apart from a nonsymptomatic scar. The fact of the
matter is that based on the evidence then of record, the RO
had no basis to assume there was any muscle injury or other
disabling residuals of the shell fragment wound. Absent such
clinical findings, the Board concludes that the VA did not
commit clear and unmistakable error in failing to award a 10
percent evaluation for the veteran's right posterior thigh
shell fragment wound residuals under Diagnostic Code 5313.
Schedule for Rating Disabilities, Diagnostic Code 5313
(1945).
III. Earlier Effective Date
The assignment of effective dates for increased evaluations
is governed by 38 U.S.C.A. § 5110 (West 1991 & Supp. 2002)
and 38 C.F.R. § 3.400 (2002). The statute provides, in
pertinent part, that:
(a) Unless specifically provided
otherwise in this chapter, the effective
date of an award based on an original
claim, a claim reopened after final
adjudication, or a claim for increase, of
compensation, dependency and indemnity
compensation, or pension, shall be fixed
in accordance with the facts found, but
shall not be earlier than the date of
receipt of application therefor.
***
(b)(2) The effective date of an award of
increased compensation shall be the
earliest date as of which it is
ascertainable that an increase in
disability had occurred, if application
is received within one year from such
date. 38 U.S.C.A. § 5110 (West 1991 &
Supp. 2002).
The pertinent provisions of 38 C.F.R. § 3.400 (2002) clarify
that:
Except as otherwise provided, the
effective date of an evaluation and award
of pension, compensation or dependency
and indemnity compensation based on an
original claim, a claim reopened after
final disallowance, or a claim for
increase will be the date of receipt of
the claim or the date entitlement arose,
whichever is the later.
***
(o)(2) Disability compensation.
Earliest date as of which it is factually
ascertainable that an increase in
disability had occurred if claim is
received within 1 year from such date
otherwise, date of receipt of claim.
In his May 1998 notice of disagreement, the veteran advanced
that the record supported assignment of an effective date
prior to September 23, 1992 for the award of a 10 percent
evaluation for his right posterior thigh shell fragment wound
residuals. He stated that a compensable evaluation should
have been assigned at the time of the initial award of
service connection. In a March 2002 written statement, the
veteran asserted that the appropriate effective date for the
award of a 10 percent evaluation for his right posterior
thigh shell fragment wound residuals was September 14, 1945,
the day following his separation from active service. He
states that while his service medical records establish that
he sustained both a penetrating right thigh shell fragment
wound and a penetrating right arm gunshot wound, an effective
date of September 14, 1945 has been assigned solely for his
right arm gunshot wound residuals.
The Board has reviewed the probative evidence of record
including the veteran's statements on appeal. The veteran
sustained a penetrating right thigh shell fragment wound
which required significant medical treatment in 1944. In
December 1947, the VA established service connection for the
veteran's right posterior thigh shell fragment wound
residuals and assigned a noncompensable evaluation for that
disability. The veteran subsequently filed claims for an
increased evaluation for his right thigh shell fragment wound
residuals in October 1981, April 1984, and April 1989. In
November 1981 and July 1989, respectively, the RO denied the
veteran's claims and informed him in writing of the adverse
decisions and his appellate rights. The veteran did not
appeal from either decision with the 1984 claim being
subsumed in the 1989 decision that was not appealed. In
September 1992, the veteran submitted a claim for an
increased evaluation for his right thigh shell fragment wound
residuals which was received on September 23, 1992 and
subsequently granted by the Board.
The veteran sustained a penetrating right posterior thigh
shell fragment wound with moderate Muscle Group XIII injury
during his period of wartime service; subsequently filed
claims for an increased evaluation for that disability which
were repeatedly denied; and the decisions denying the claims
became final. Given these facts, the assignment of the
appropriate effective date for the award of a 10 percent
evaluation is the date of receipt of the veteran's reopened
claim. The veteran's reopened claim was received by the RO
on September 23, 1992. Therefore, the Board concludes that
an effective date prior to September 23, 1992 is not
warranted.
ORDER
The VA's December 1947 rating decision was not clearly and
unmistakable erroneous in failing to assign a 10 percent
evaluation for the veteran's right posterior thigh shell
fragment wound residuals.
An effective date prior to September 23, 1992 for an award of
a 10 percent evaluation for the veteran's right posterior
thigh shell fragment wound residuals with Muscle Group XIII
injury is denied.
Constance B. Tobias
M.W. Greenstreet
Member, Board of Veterans' Appeals Member, Board of Veterans'
Appeals
C.W. Symanski
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
Citation Nr: 0114546
Decision Date: 05/24/01 Archive Date: 05/30/01
DOCKET NO. 99-14 248 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an effective date earlier than September 23,
1992 for the grant of a 10 percent evaluation for service-
connected residuals of a shell-fragment wound to the right
lower extremity (Muscle Group (MG) XIII).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran served on active duty from December 1942 to
September 1945.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from an August 1997 rating decision of the
Department of Veterans Affairs (VA), St. Petersburg, Florida,
Regional Office (RO). In that decision, inter alia, the RO
implemented an Order issued by the Board in a July 1997
decision and increased the disability evaluation of the
veteran's service-connected residuals of a shell-fragment
wound to the right lower extremity (Muscle Group (MG) XIII)
from a noncompensable rating to a 10 percent rating. The RO
assigned September 23, 1992 as the effective date of that
award. The veteran has perfected an appeal of that effective
date.
During the course of the development of the current appeal,
the veteran had asserted a claim of entitlement to service
connection for tremors. In a statement submitted on December
1, 1999, however, the veteran withdrew that claim.
FINDINGS OF FACT
1. On July 26, 1989, the RO notified the veteran of the
denial of his claim for an increased evaluation of his
service-connected residuals of a shell-fragment wound to the
right lower extremity (Muscle Group XIII). The veteran did
not file a notice of disagreement within one year following
the date of that decision.
2. On September 23, 1992, the veteran filed a claim for an
increased rating for service-connected residuals of a shell-
fragment wound to the right lower extremity (Muscle Group
XIII). In an August 1997 rating decision, a 10 percent
disability evaluation was assigned for that disorder,
effective from September 23, 1992.
CONCLUSION OF LAW
The criteria for an effective date prior to September 23,
1992 have not been met for the assignment of a 10 percent
evaluation for residuals of a shell-fragment wound to the
right lower extremity (Muscle Group XIII). 38 U.S.C.A.
§§ 1155, 5101(a), 5110 (West 1991); 38 C.F.R. §§ 3.1(p),
3.151(a), 3.400, 20.200 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
In a December 1947 rating decision, service connection was
granted for scars to the right upper arm and right thigh,
residuals of gunshot wounds, and evaluated as zero percent
disabling, effective from the day following the veteran's
separation from service, September 14, 1945. The veteran did
not thereafter file a notice of disagreement with the
evaluation assigned.
In a November 1981 rating decision, in pertinent part, the
veteran's service-connected scar of the right leg, as a
residual of a shell fragment wound, was set out as separate
and apart from the service-connected scar of the right arm,
as a residual of a gun shot wound. In the decision, the RO
explained that the veteran had submitted no evidence that
indicated that these disabilities had increased in severity
beyond the percentages currently assigned. Each such scar
disability was assigned a separate zero percent evaluation,
effective from September 14, 1945. In the same decision,
service connection was denied for several other disorders.
The veteran was provided notice of this rating decision in a
letter dated November 18, 1981.
On July 2, 1984, a letter from the veteran dated April 12,
1984 was received by the RO. The letter was introduced by a
cover statement, VA Form 21-4138, in which the veteran noted
that he wished to have the attached documents and letter
added to his VA claims file to become a part of his permanent
record. In the April 12, 1984 letter, the veteran stated
that he was writing in reference to the November 18, 1981
letter from the RO. The veteran explained that "[e]ven
though a considerable amount of time has elapsed, I am
anxious to get my military record complete. I am listing
facts below to better complete my records in the Marines
Corps." The letter went on to list wounds and injuries that
the veteran reported he had received while in service.
Included amongst these was a reference to the "scar on the
right leg, residuals of several fragment wounds." The
veteran explained that he had had "severe pain in [his]
right leg for a number of years and it gets worse."
Following several paragraphs concerning other wounds, the
veteran stated that he had not received any of the medals
that he was to receive. He noted that the statements were
being submitted to the Records Department for information to
update his records. He concluded by stating that he was
"look[ing] forward to any additional medals or other
materials" that were due to him.
On April 27, 1989, a statement dated April 25, 1989, was
received by the RO from the veteran's service representative.
The statement directed that it be considered an informal
claim for benefits, including an increase in service-
connected disability benefits currently being received. On
the same day, a statement was received from the veteran dated
April 18, 1989, in which he requested, in pertinent part, a
"desire to reopen his claim for service connection for the
following conditions: right thigh shrapnel injury . . . .
." The veteran requested a compensation examination.
On May 11, 1989, the RO directed a letter to the veteran
requesting medical evidence to support his claim that his
service-connected condition is more disabling than previously
rated. The veteran was given 60 days to respond. On June
26, 1989, the RO directed a letter to the veteran stating
that his claim was being disallowed because of his failure to
submit the requested supporting evidence. The veteran was
reminded that he could still submit evidence but that it must
be received before May 11, 1990 in order to be paid prior to
the receipt of any such evidence. The veteran was provided
notice of his rights to appeal.
On September 23, 1992, a claim was received from the veteran
requesting re-evaluation of his service-connected
disabilities. He stated, in pertinent part, that his shell
fragment wound of the right thigh was becoming much worse,
and that he was being treated by a named physician. In a
February 1993 rating decision, the RO denied the veteran's
claim for an increase. The veteran perfected an appeal of
that decision and in July 1997, the Board granted the
veteran's appeal and increased the disability evaluation of
the veteran's service-connected residuals of a shell-fragment
wound to the right lower extremity (Muscle Group (MG) XIII)
from a noncompensable rating to a 10 percent rating. In an
August 1997 rating decision, the RO assigned the date of the
veteran's claim, September 23, 1992, as the effective date of
that award for an increased evaluation. The veteran
perfected an appeal as the effective date of the award of the
10 percent disability evaluation for his right lower
extremity disability.
Analysis
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by VA. 38 U.S.C.A. § 5101(a)
(West 1991); 38 C.F.R. § 3.151(a) (2000). A "claim" or
"application" is a formal or informal communication in
writing requesting a determination of entitlement or
evidencing a belief in entitlement to a benefit. 38 C.F.R. §
3.1(p) (2000). An informal claim is any communication
indicating an intent to apply for one or more benefits. The
benefit being sought must be identified. 38 C.F.R. § 3.155
(2000).
The effective date of an evaluation and award of compensation
based on a reopened claim will be the date of receipt of
claim or the date entitlement arose, whichever is the later.
38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r) (2000).
The effective date of an evaluation and award of compensation
based on a claim for increase will be the earliest date as of
which it is factually ascertainable that an increase in
disability had occurred, if the claim is received within one
year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §
3.400(o)(2). That is, "evidence in a claimant's file which
demonstrates that an increase in disability was
'ascertainable' up to one year prior to the claimant's
submission of a 'claim' for VA compensation should be
dispositive on the question of an effective date for any
award that ensues." Quarles v Derwinski, 3 Vet. App. 129,
135 (1992).
An appeal consists of a timely filed Notice of Disagreement
in writing and, after a Statement of the Case has been
furnished, a timely filed Substantive Appeal. 38 C.F.R. §
20.200 (2000).
A claim which has been allowed or disallowed by the RO
becomes final by the expiration of one year after the date of
notice of an award or disallowance, or by denial on appellate
review, whichever is the earlier. 38 C.F.R. §§ 3.160(c),
20.1103 (2000). The filing of additional evidence after
receipt of notice of an adverse determination does not extend
the time limit for initiating or completing an appeal from
that determination. 38 C.F.R. § 20.304 (2000).
As noted, the veteran has challenged the effective date of
the award of the 10 percent disability evaluation for his
right lower extremity disability. It is his basic contention
that his letter dated April 12, 1984, and received by the RO
on July 2, 1984, was in fact a claim for an increased
disability evaluation for his right lower extremity
disability. He argues that the RO failed to take any action
on the claim, and it therefore remained pending until the
time that he was granted the 10 percent evaluation by the
Board in 1997. He asserts that the effective date of that
award should therefore be the date of the receipt of the
unanswered claim, July 2, 1984.
First, in answer to the allegations regarding the veteran's
April 1984 letter, it is noted that the veteran's expressed
purpose for the letter was to update his military records,
ostensibly to determine whether he would be due "any
additional medals or other materials" that he had not
received. There is no indication, expressed or implied, that
the veteran was "requesting a determination of entitlement
or evidencing a belief in entitlement to a benefit." 38
C.F.R. § 3.1(p) (2000). Nor was there any indication in the
April 1984 communication of an intent to apply for one or
more benefits; nor was there an identification of which
benefit, if any, was being sought. 38 C.F.R. § 3.155 (2000).
The Board finds therefore, that the April 1984 letter to the
RO from the veteran was neither a formal nor an informal
claim for any benefit administered by the VA, including a
claim for an increased rating for his service-connected right
lower extremity disability.
Second, even if the material submitted by the veteran on July
2, 1984 were to be construed as a claim, his efforts to
establish that date as the effective date of his increased
evaluation for his right lower extremity disorder would still
fail. Significantly, in May 1989, the RO had asked the
veteran to submit evidence to support his April 1989 request
for increased benefits for his service-connected right lower
extremity disorder. The veteran failed to respond, and his
April 1989 claim was denied by the RO in a July 1989
decision. The veteran did not file a notice of disagreement
to this decision and it became final. 38 U.S.C.A. § 4105(c)
(West 1989); 38 C.F.R. § 19.153 (1989). Thus, the July 1984
communication from the veteran (if it were to be construed as
a claim for increased benefits) would necessarily have been
enveloped in and superceded by the subsequent denial of those
benefits in July 1989, a decision that has become final.
The next communication of any kind received by the RO on the
issue of an increased rating for the veteran's service-
connected right lower extremity disorder (including any
medical evidence) was the claim filed by the veteran on
September 23, 1992. The Board finds that until the filing of
that claim, it was not factually ascertainable from the
evidence of record, that the veteran's service-connected
residuals of a shell-fragment wound to the right lower
extremity (Muscle Group XIII) had increased in severity over
that manifested at the time of the December 1947 rating
decision. Consequently, the veteran is not entitled to an
effective date for the grant of the 10 percent evaluation for
service-connected residuals of a shell-fragment wound to the
right lower extremity (Muscle Group XIII) prior to September
23, 1992, the date he filed his reopened/increased rating
claim. The decision of the RO is affirmed on that basis.
ORDER
Entitlement to an effective date earlier than September 23,
1992 for the assignment of a 10 percent evaluation for
residuals of a shell-fragment wound to the right lower
extremity (Muscle Group XIII) is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals